One of the hallmarks of a successful attorney is that she realizes that
there are many avenues of relief from unfair judicial decisions. In much
the same way as a chess player will think several moves ahead to decide
which move is most likely to lead ultimately to victory, a good lawyer
will constantly try to anticipate the judge's decision on every issue,
and to figure how to deal with that decision when it causes injustice for
the client. Typically, this means properly preserving the error for appeal
hence the need for a manual on preservation.

But what about those decisions that cannot be "fixed" on appeal? For
example, an appeal cannot truly correct an improper pretrial decision to
admit confidential records into evidence - by the time the appeal is heard,
the records will have been permanently placed in the public domain, and
the damage will have been done. Likewise, other decisions, such as a decision
by the Department of Juvenile Justice to revoke a client's supervised placement,
simply do not have a formal appeal as an option. In those situations, what
does an attorney do then to protect the client's interests?

It is for dealing with just those situations that the common law writs
emerged. Generally referred to as "extraordinary" writs, these actions
developed as a means to correct administrative and judicial decisions that,
for one reason or another, could not be dealt with through the ordinary
appeals process. While these writs might be rare, when they are properly
used they can be a potent tool to prevent injustice. Consequently, knowing
when writs can win cases, and understanding the process for using those
writs, is an essential part of an attorney's arsenal.

II. What is a Writ?

(A) The common law writs are civil actions against judges or other persons
and are analogous to injunction actions against private parties.

(B) Under current law, these actions are properly referred to as "original
actions," although courts continue to use the language of common law writs.

(C) Under current law, the following extraordinary actions are available:

(1) Actions against judges are authorized by:(a) CR 76.36 against circuit or Court of Appeals judges;

(b) CR 81 against district court judges;

(c) RCr 4.43(2) and KRS Chapter 419 only for purposes of complaining
about "the action of a district court respecting bail."

(2) Actions against custodians of prisoners or mental hospital inmates
are authorized by KRS Chapter 419 and KRS 202A.151.

(3) Where there is no statutory provision for appealing a decision of
an administrative body, such actions can be maintained under CR 81.

III. Types of Actions

The type of proceeding you use depends on the situation confronting
the client.

(A) If you are asking the court to direct the actions of an inferior
court judge or an administrative agency, you must decide whether you want
relief in the nature of a "prohibition" of an order of "mandamus." CR 76.36
(rule for actions in Court of Appeals); CR 81 (rule for actions in circuit
court).

(1) Writ of Prohibition
(a) A prohibition forbids the judge or official from taking an action
or enforcing an order that has already been entered.

(b) For prohibition the petitioner must show, depending on the circumstances,

(i)
(A) that the judge is acting outside her jurisdiction, and
(B) that there is no adequate remedy by appeal, Commonwealth v.
Williams, Ky.App., 995 S.W.2d 400 (1999); or

(ii)

(A) that the judge is acting erroneously within his jurisdiction,
(B) that there is no adequate remedy by way of appeal, and
(C) that great harm or irreparable injury will result if the higher
court does not intervene now. See Sisters of Charity Health Systems
v. Raikes, Ky., 984 S.W.2d 464 (1999).
(c) While the possible applications for this writ are boundless - so long
as one of the tests listed above has been met - writs of prohibition have
previously been used for the following:
(i) To challenge a pretrial order releasing (or admitting into evidence)
confidential information. F.T.P. v. Courier Journal & Times Inc.,
Ky., 747 S.W.2d 444 (1989); Angelluci v. SouthernBluegrass MH&R
Center, Ky., 609 S.W.2d 928 (1980).

(ii) To prohibit the Commonwealth from trying a defendant in violation
of his double jeopardy rights. St. Clair v. Roark, Ky., 10 S.W.3d
482 (1999); McGinnis v. Wine, Ky., 959 S.W.2d 437 (1998). This circumstance
includes preventing retrial where defendant was previously tried and acquitted
in federal court, Benton v. Crittenden, Ky., 14 S.W.3d 1 (1999);
as well as where retrial is ordered after a mistrial, where the defendant
objected to the original mistrial. Grimes v. McAnulty, Ky., 957
S.W.2d 223 (1998).

(iii) To prohibit the court for requiring the defense to turn over a
witness list. King v. Venters, Ky., 576 S.W.2d 721 (1980).

(v) To prohibit the trial court from enforcing an order compelling a
party to sign an unrestricted medical authorization. Geary v. Shroering,
Ky.App., 979 S.W.2d 134 (1998).

(2) Writ of Mandamus

(a) A mandamus directs the subordinate judge or official to take action
but it cannot tell her what action to take.

(b) For mandamus the petitioner must show:

(i) that the judge has refused to do some act that the law requires
him to do;

(ii) that there is no adequate remedy by way of appeal; and

(iii) that great harm or irreparable injury will result if the higher
court does not require the judge to act. See Humana v. NKCHospitals,
Ky., 751 S.W.2d 369 (1988), and Southeastern United Medigroup v. Hughes,
Ky., 952 S.W.2d 195 (1997).

(c) As with writs of prohibition, one is entitled to the writ for
any circumstance which meets the test for mandamus stated above in part
(b). Previous cases on mandamus have included the following:

(iii) To compel the trial court to return exculpatory evidence to the
defendant for testing, where the evidence is of such a nature that it cannot
be tested without destroying the evidence. McGregor v.Hines,
Ky., 995 S.W.2d 384 (1999).

(iv) To compel the Department of Juvenile Justice to release a juvenile
from active custody, when the Department took custody based on an erroneous
decision to revoke the child's supervised placement. L.M. v. Kelly,
Franklin Circuit Court, Civil Action No.: 99-CI-469.

(a) As mentioned previously, common law writs have been formally abolished,
even though the language of "mandamus" and "prohibition" continues to be
widely used by courts and litigators. Thus, the use of the common law name
in a petition is essentially surplussage, and there is no rule against
simply styling the writ as a writ of "mandamus and/or Prohibition."

(b) The test for determining whether to grant a "writ of mandamus and/or
Prohibition" is basically the same as whether to grant a writ of prohibition.

(c) Though by no means required, many attorneys now style their writs
as writs of "prohibition and/or mandamus" on the principle of "better safe
than sorry."

(4) Writs against lower court judges are to be filed in the next
highest court, regardless of the duration of the potential sentence. Thus,
a writ to contest the decision of the circuit court is filed in the Court
of Appeals, a writ to contest the decision of the district court is filed
in the circuit court, etc.

(5) Writs against administrative agencies are filed in the circuit court
of the county where the agency is located (generally, Franklin Circuit
Court).

(B) Habeas Corpus and RCr 4.43 appeals

(1) Occasionally referred to as the "great writ," the term "habeas
corpus" literally means "you have the body." It has been historically been
used as a means to compel a jailer or prison warden to release an inmate
from custody. Kentucky's constitution provides that the "the writ of habeas
corpus shall not be suspended . . .." Ky. Const., § 16.

(3) Habeas corpus is designed to be an expedited proceeding of a summary
nature, and therefore not appropriate for issues where there are factual
disputes. Commonwealth v. Marcum, Ky., 873 S.W.2d 207 (1994); KRS
419.110(1)

(4) Habeas is appropriate under the following circumstances:

(a) Where the judgement is void (as opposed to merely voidable). Generally
refers to situations where defendant is being held on a judgment which
was modified outside the timelines, or where there has been a total denial
of counsel. Marcum, supra.

(b) To secure review of a district court's bail determination. RCr 4.43(2).
However, if habeas corpus is the right procedural method to seek review
of bail set by the district court, then the circuit court must also have
the authority to modify pretrial release conditions. KRS 23A.080(2); RCr
4.43(2).

(c) Where the actions of the custodian are so absolute and arbitrary
as to violate § 2 of the Kentucky Constitution. For example, where
the Department of Corrections released a prisoner into the custody of Louisiana
authorities, in clear violation of Kentucky law, the Supreme Court has
held that the transfer "operated as a forfeiture of the Commonwealth of
Kentucky's right to enforce completion of the sentence under which it was
holding him at the time of transfer." Yost v. Smith, Ky., 862 S.W.2d
852, 854 (1993).

(d) To order release of a person incarcerated or institutionalized past
the statutory time limits. Commonwealth v. Brown, 911 S.W.2d 279
(1995) (Habeas authorized to compel release of mental patient held longer
than seven days without probable cause hearing). Also should apply to individuals
held longer than 60 days without indictment. See RCr 5.22.

(5) Appealing the bail determination of the circuit court is properly
done through an appeal to the Court of Appeals under RCr 4.43.

IV. Importance of a written order

(A) In general, you must always have a written order to complain
about.

(1) CR 58(1) provides that an order is not effective before it is
signed by the judge and entered on the docket of the court.

(2) You should not rely on oral decisions made on video or audio tape.

(a) Ask the judge to write something down or tender an order yourself.

(b) It can be handwritten if necessary.

(3) Remember that in district court the docket sheet signed by the
judge is the order of the court. RCr 11.04(4).

(B) If the court refuses to enter a written order, you should submit
an affidavit with your writ setting forth the fact that you asked for a
written ruling, and the court refused. As a practical matter, the higher
court will rely on your assurances as a member of the bar, rather than
force you to file a mandamus to compel the judge to render a decision.

V. Mechanics of Filing for Mandamus or Prohibition in the Court of
Appeals

(A) In the Court of Appeals, CR 76.36 prescribes the procedure to follow.

(1) Because leave to prosecute an action is conditioned on payment
of a filing fee and because this is an original civil action commenced
in the Court of Appeals, you must tender with your pleadings a motion to
proceed
in forma pauperis and appoint counsel, preferably with the
completed KRS 31.120 affidavit attached.
(a) The affidavit is an AOC form that you can pick up at the civil
suit desk or from most bench clerks.

(b) If you don't have time to get the affidavit or your client is not
available, your representation in the motion that your client is indigent
enough to rate appointed counsel in the circuit court is usually good enough.
West
v. Commonwealth, Ky., 887 S.W.2d 338 (1994).

(c) Tender an order with this motion.

(2) The format of the pleadings is described in CR 76.36(1).

(a) You must name the judge as the Respondent.

(b) The Commonwealth of Kentucky is the Real Party in Interest. CR 76.36(8).

(c) Any codefendants who may be named in the indictment but who for
any reason don't want to join should be accounted for in the text of the
motion although it is not required by rule.

(3) CR 76.36(1)(b) only requires a recitation of facts by you. You
should also try to obtain a videotape of the proceedings about which we
are complaining.

(a) Submission of the video is authorized by CR 76.36(5) which allows
attachment of exhibits, affidavits and counter affidavits.

(b) Pay particular heed to the last sentence of subsection (5) which
says categorically that oral testimony will not be heard in the appellate
court.

NOTE: The videotape is not a substitute for a fair and complete statement
of the material facts.

(4) You must tell the Court exactly what you want it to do.

(a) Usually this is phrased as a request for an order prohibiting
the lower court judge from enforcing his order of such and such a date.

(5) The memorandum is usually a separate pleading although the rule
does not demand it. If you have an uncomplicated case, there is no reason
not to put everything in a single document. Write clear captions so the
court will know that everything is there.

(7) A copy of everything you file must be served on the judge and the
real party in interest, the Commonwealth. Though it is not required, you
are permitted to provide courtesy copies to non-parties (e.g. codefendants)
when you think it would be to your advantage to do so.

(8) Depending on the time constraints, file the original and four (4)
copies of everything in one of the following ways:

(c) By delivery to the local chambers of the Court of Appeals but only
if you are going to be seeking immediate relief (i.e. a stay of
the circuit court order) and only after getting the clerk of the court's
O.K.

(9) Time for responses:

(a) If you deliver the service copies to the Commonwealth and the
judge, the Commonwealth will have 10 days to answer.

(b) If you mail service copies to either or both, the Court of Appeals
tacks on the three mail days authorized by CR 6.05 so the Commonwealth's
response is due 13 days after mailing.

(B) CR 76.36(4) allows you to seek "intermediate relief," usually
a stay of the circuit judge's order if you need relief before the 10 day
response period expires.

(1) The only ground on which relief can be granted is "immediate and
irreparable injury" before a hearing may be had on the petition.

(2) Although it is not required in writ cases, it sometimes helps if
you can show that you asked the circuit judge to reconsider. Consider RCr
12.82.

(3) To obtain relief, you must draft another pleading, filed in quintuplicate
with the others and served on the judge and the Commonwealth, explaining
why you need the relief.

(4) As a matter of selfinterest, we try to accommodate the Commonwealth
so they will try to accommodate us in other cases but in all cases you
must give notice.

(5) You must call the Clerk of the Court of Appeals (15025737920) in
Frankfort and he will try to find a judge to hear this motion.

(6) The order of a single judge is only good until a threejudge panel
can consider the motion for intermediate relief.

(C) Disposition of the Petition

(1) As soon as a response is filed or the response time expires, the
case is given to the next available motion panel at the Court of Appeals.
CR 76.36(6).

(2) These panels meet twice a month but not at regular intervals so
it is hard to say how long it will take.

(3) If the case is complicated or involves new or difficult issues of
law the panel may work on it for several weeks before deciding.

(D) Appealing an Adverse Decision on the Writ.

(1) If you lose your petition, you are entitled to one appeal as of
right. CR 76.36(7).

(2) You must file notice of appeal in the Court of Appeals within 30
days of the decision.

(3) Within 30 days of the notice of appeal, you must file a statement
of appeal and a brief in Supreme Court. CR 76.36(7)(c).

(a) The requirements for the statement of appeal are pretty straightforward,
and our set out in CR 76.36(d).

(b) The requirements for the brief are found in CR 76.12.

(c) Be sure to serve the Clerk of the Court of Appeals with the statement
of appeal. 76.36(d)

(4) You may want to ask an appeals attorney for help if you plan
do go down this road.

VI. Mechanics of Filing for Mandamus or Prohibition in the Circuit Court

(A) These actions are treated as ordinary civil actions in the circuit
court with a few exceptions.

(1) You will need an in forma pauperis (IFP) motion and an
order for the circuit judge to sign.
(a) KRS 31.110(1)(a) allows us to represent clients in any necessary
ancillary litigation. Abernathy v. Nicholson, Ky., 899 S.W.2d 85
(1995).(i) Use the AOC affidavit form except in cases of extreme emergency.

(a) It is sufficient to serve a copy of all pleadings on the district
judge and on the county attorney as provided in CR 5.02.

(3) Because this is a civil action, the Commonwealth will have twenty
(20) days to file an answer.

(4) CR 76.01 says that Rule 76 "applies only to practice and procedure
in the Court of Appeals and Supreme Court." Although we usually follow
the CR 76.36 format of pleadings it is not necessary.

(B) Where to go

(1) You must start by getting a circuit judge to sustain your IFP
motion. In most circuits, any judge can sign the motion, even if they will
not preside over the action.

(2) If you are not seeking a stay, all you have to do is make sure that
the district judge and the county attorney are served.

(a) If you need a stay, the authority for granting it is Section 109
of the Constitution as interpreted in Smothers v. Lewis, Ky., 672
S.W.2d 42, 44 (1984). That case says that once a court has jurisdiction
of a case, it can enter any order necessary to proper disposition of the
case. KRS 23A.080(2) may also cover this. The standard for relief is showing
immediate and irreparable harm before the case can be heard.

(3) If the stay is denied, you can seek relief in the Court of Appeals.
This is by means of a motion for discretionary review, CR 76.20 and an
intermediate motion pursuant to CR 76.33.

(4) After the Commonwealth files its answer, the case proceeds as with
any other civil case.

(a) At this level further proof can be taken at hearings or by deposition.

(b) You can file a summary judgment motion. CR 56.

(c) In rare occasions you can ask for a bench trial, although this should
be unnecessary if you have filed the audio tape from district court.

(5) If the Commonwealth does not respond, file a motion for default
judgment under CR 55. CR 55.04 requires establishment of your client's
right to relief in addition to mere failure to answer because the case
involves the Commonwealth.

(6) If you lose, you must file a civil appeal which has several required
steps right after the notice is filed. See an appellate attorney. (Keep
in mind that CR 59, particularly CR 59.05, applies in a writ case and that
the timely service, not filing, of a CR 59 motion stops the running
of appeal time. CR 62.01.)

VII. Habeas Corpus

(A) It is a statutory action which means that its procedural requirements
must be adhered to strictly. There are local procedural rules as well.
CR 1(2).

(B) KRS 419.020 requires the following pleadings:

(1) A petition stating how your client came to "detained without lawful
authority or is being imprisoned when by law he is entitled to bail." KRS
419.020.

(2) An affidavit of probable cause executed by you or your client adopting
the petition as grounds showing probable cause to believe that the detention
is improper.

(3) A "writ" for the judge to sign, i.e. an order captioned "Writ
of Habeas Corpus" for the judge to sign. This order directs the custodian
to produce the prisoner for hearing at the time set by the judge in the
order.

(C) KRS 419.060 requires personal service by hand delivery to that
person.

(1) Mail is not sufficient service.

(2) If you can't hand the papers to the custodian personally, KRS 419.060(3)
allows you to leave the papers at his office.

(3) At some point the person effecting service must make a return notation
to the file.

(D) Again, if a hearing on the writ itself can't be scheduled immediately,
Section 109 and Smothers v. Lewis, supra, authorize you to ask for
immediate release.

(E) Otherwise, the writ is disposed of at a summary bench trial at which
evidence may be produced. Usually, if there is an audio tape of the district
court proceedings this won't be necessary.

(F) If you lose, the case can be appealed to the Court of Appeals but
the procedure is quite different from a normal appeal. The procedure in
KRS 419.130(1) is mandatory. Two days before you file the "Notice of Appeal,"
you need to serve your opponents. It should be clear on the face of the
"Notice of Appeal" that it is a habeas corpus case, or the Court of Appeals
may inadvertently treat it as an ordinary civil case. Habeas appeals are
assigned to the next available motion panel for resolution.

VIII. RCr 4.43 Appeals of Circuit Court Bail Decisions

(A) RCr 4.43 permits the Court of Appeals to review the bail decisions
of the circuit court, and establishes an expedited process for doing so.

(B) Procedure under RCr 4.43.

(1) To challenge a bail decision the defendant has to file a "notice
of appeal" from the bond judgment, in the manner provided by RCr 12.04.
RCr 4.43(1)(a). You would be well advised to make it plain on the face
of the notice that you are appealing from a bond decision.

(2) When the notice of appeal is filed, the clerk of the circuit court
is to prepare and certify an appellate record, consisting of the portion
of the court record which is relevant to the question of bail. The clerk
is to transmit that record within 30 days of the notice of appeal. RCr
4.43(1)(b). As it is generally the responsibility of the party who has
taken the appeal to ensure that the record is properly certified, you would
be well advised to check with the clerk to ensure that appropriate progress
is being made. The faster the record gets to the Court of Appeals, the
faster the appeal will be decided.

(3) Within 15 days after the record is sent to the Court of Appeals,
the appellant (i.e. your client) must file a brief with the Court
of Appeals. The brief is to be no longer than five pages long, and must
comply with the formatting requirements of CR 76.12. RCr 4.43.

(4) Oddly, RCr 4.43 also directs the appellant to file a statement of
appeal "required by CR 76.06." RCr 76.06 has long since been repealed,
however, and George Geohegan, Clerk of the Court of Appeals, advises that
a statement of appeal is longer required.

(5) The Commonwealth has 10 days to file a brief, but is not required
to do so.

(C) While this process is "expedited" by the standards of the Court of
Appeals, you should still be prepared for the process to take several months,
even under the best of circumstances.

IX. Final Thoughts

Below is a list of significant recent writ cases. Reading through these
cases, it is clear that writs have been used as a potent tool for dealing
with those rare cases when an appeal just is not enough. That being the
case, an attorney dealing with an adverse decision would be well advised
to consider whether an appeal can return the client to where he was prior
to that decision. If so, then the client will likely have to just wait
it out. Regrettably, our system tolerates your client's incarceration much
better than your client does. However, if the client will lose something
that an appeal will come too late to restore, such as the ability to test
a particular piece of evidence, or the confidentiality of a particular
piece of information, then a writ might be the right course of action to
take.

St. Clair v. Roark, Ky., 10 S.W.3d 482 (1999) - double jeopardy
can be litigated through a writ of prohibition, but the court is not required
to grant a writ on double jeopardy grounds, where there is also an adequate
remedy on appeal.

University of Louisville v. Shake, Ky., 5 S.W.3d 107 (1999) -
denying writ of mandamus to compel disqualification of opposing counsel
where petitioner failed to show irreparable harm if counsel was permitted
to continue on the case.